May 08, 2013, 6:15 AM — WASHINGTON - Within the U.S. Senate's comprehensive immigration bill is a proposal to create a database that may shed new light on H-1B hiring.
The intent of the database is to help improve the odds that a U.S. worker may get hired over a foreign worker. But the bill's effectiveness may rise and fall on fuzzy terms, such as "preference" and "good faith" hiring, and its enforcement provisions. This is where the legislative battle may be fought.
There are a string of provisions in the Senate's bill its proponents say are intended to help U.S. workers. One is a requirement for the government to create a national database of jobs that employers want to fill with H-1B workers. U.S. workers will be able to apply for those jobs, which will be posted for 30 days. Employers are also barred "from recruiting or giving preference" to visa workers over U.S. workers.
The tech industry is concerned that the immigration bill's recruitment and database provisions may extend the amount of time needed to hire an H-1B worker, and, more broadly, increase the risk of litigation and government oversight.
The final shape of the Senate's comprehensive immigration bill is now being set. The Senate Judiciary Committee is due to meet Thursday to begin considering a series of amendments to the bill. This is expected to take several days.
H-1B critics are already skeptical about the bill, which raises the base H-1B cap from 65,000 to as high as 180,000, based on a market adjustment provision.
There "is no enforcement mechanism," in the bill, said John Miano, who founded the Programmers Guild, an organization that has long been at odds with the H-1B program. He can point to history to back up his view.
Under present law, H-1B dependent employers are required to make a "good faith" effort to hire a U.S. workers. Good faith means U.S. workers "must be given fair consideration for jobs," according to the U.S. Dept. of Labor.
An "H-1B dependent" firm is one that has 50 or more employees, of which 15% or more are on H-1B visas. But H-1B dependent firms, which include large offshore outsourcing firms, hire thousands of visa workers, despite the "good faith" provisions.
There are loopholes for getting around the good faith requirement. If an H-1B worker earns more than $60,000 a year, or holds a master's degree, they are exempt from the good faith provision.
"The new recruitment provisions are completely meaningless," said Miano.
Daniel Costa, an immigration policy analyst at the Economic Policy Institute, says the immigration bill only requires non H-1B dependent employers to "recruit" by using the proposed Labor Dept.'s database. A good faith effort isn't required.